Shashi Kumar Vs State of Hp

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2025:HHC:31970

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MP (M) No. 2013 of 2025 Reserved on: 11.09.2025 Date of Decision: 17.09.2025.

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Shashi Kumar ...Petitioner versus State of Himachal Pradesh ...Respondent

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Coram Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No For the Petitioner : Mr. Arsh Chauhan, Advocate. : For the Respondent Mr. Tarun Pathak, Deputy Advocate General.

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Rakesh Kainthla, Judge

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The petitioner has filed the present petition for seeking regular bail in FIR No. 82 of 2025, dated 20.05.2025, for the commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as “NDPS”) registered at Police Station Dharamshala, District Kangra (HP).

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It has been asserted that, as per the prosecution, 13 grams of heroin/ chitta was recovered from a room located on Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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the ground floor of the petitioner’s house. The room was in possession of the co-accused (Gautam), who was residing therein with his wife. The applicant was not present in the room at the time of recovery. 13 grams of heroin falls within intermediate quantity, and the rigours of Section 37 of the NDPS Act do not apply to the present case. The police have completed the investigation, and the matter is listed for consideration of charge. Mere ownership of the premises is insufficient to establish conscious possession. There is no evidence to show the petitioner’s knowledge of the contraband. Co-accused (Gautam) has already been released on bail by the learned Special Judge, Dharamshala, District Kangra, (HP), and the petitioner is entitled to bail on the principle of parity. Petitioner is a permanent resident of District Kangra, and no fruitful purpose would be served by detaining him in custody. Hence, it was prayed that the present petition be allowed and the petitioner be released on bail.

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The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 19.05.2025. They were checking the vehicles at Ghiyari Pul, Yol. They received a secret information at 12.30 AM that Shashi

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Kumar (the present petitioner) and Gautam (co-accused) were selling heroin from their home. A huge quantity of heroin could be recovered from their house. The police reduced the information into writing and sent it to the Additional Superintendent of Police, Kangra. Police associated Anil Kumar and Abhishek Anand and went to the petitioner’s house. The police checked the house in the presence of the petitioner and co-accused (Gautam). The police recovered one transparent polythene packet containing 13 grams of heroin. Police seized the heroin and arrested the petitioner and the co-accused. Heroin was sent to S FSL Junga, and as per the result of analysis, it was found to be a sample of Diacetylmorphine (heroin). FIR Nos. 34 of 2020, 16 of 2022, 129 of 2022, 137 of 2022, 130 of 2022 and 141 of 2022 are pending against the petitioner. The charge sheet was filed and presented before the learned Trial Court. The matter was listed for consideration of the charge on 02.09.2025.

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I have heard Mr. Arsh Chauhan, learned counsel for the petitioner and Mr. Tarun Pathak, learned Deputy Advocate General for the respondent/State.

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Mr. Arsh Chauhan, learned counsel for the petitioner, submitted that the petitioner is innocent and that he was falsely implicated. The co-accused has already been released on bail. Recovery was made from the room of the co-accused, and the petitioner cannot be held liable merely because of the ownership of the house. The quantity of heroin stated to have been recovered from the house was less than a commercial quantity. Rigours of Section 37 of NDPS do not apply to the present case. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.

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Mr. Tarun Pathak, learned Deputy Advocate General for the respondent/State, submitted that the petitioner was found involved in the commission of various offences. Six FIRs are pending against him, and he has been acquitted in three FIRs. The petitioner would indulge in the commission of a similar offence in case of his release on bail. Hence, he prayed that the present petition be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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The parameters for granting bail were considered by the Hon’ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC

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768: 2024 SCC OnLine SC 974, wherein it was observed at page 783: -

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“Relevant parameters for granting bail

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26. While considering as to whether bail ought to be granted in a matter involving a serious criminal offence, the Court must consider relevant factors like the nature of the accusations made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the role attributed to the accused, the criminal antecedents of the accused, the probability of tampering of the witnesses and repeating the offence, if the accused are released on bail, the likelihood of the accused being unavailable in the event bail is granted, the possibility of obstructing the proceedings and evading the courts of justice and the overall desirability of releasing the accused on bail. [Refer: Chaman Lal v. State of U.P. [ Chaman Lal v. State of U.P . , ( 2004) 7 SCC 525: 2004 SCC (Cri) 1974]; Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC (Cri) 1977]; Masroor v. State of U.P. [Masroor v. State of U.P., (2009) 14 SCC 286 : (2010) 1 SCC (Cri) 1368]; Prasanta Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765]; Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527]; Anil Kumar Yadav v. State (NCT of Delhi)[Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129 : (2018) 3 SCC (Cri) 425]; Mahipal v. Rajesh Kumar [Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 : (2020) 1 SCC (Cri) 558] . ]

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The Hon’ble Supreme Court cautioned the Courts against the superficial examination of the bail consideration in Shabeen Ahmad v. State of U.P., (2025) 4 SCC 172: 2025 SCC OnLine SC 479, and it was observed at page 177:

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“18. A superficial application of bail parameters not only undermines the gravity of the offence itself but also risks weakening public faith in the judiciary's resolve to combat the menace of dowry deaths. It is this very perception of justice, both within and outside the courtroom, that courts must safeguard, lest we risk normalising a crime that continues to claim numerous innocent lives.”

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The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

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It is undisputed that the petitioner is the owner of the house from where the recovery was effected. It was submitted that the co-accused (Gautam) was in possession of the room. Reliance was placed upon the status report in which it was mentioned that the co-accused (Gautam) disclosed that the room belongs to him. Not much advantage can be derived from the statement made by the co-accused. The statement was made during the investigation and is inadmissible. It was laid down by the Hon’ble Supreme Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547: (2020) 2 SCC (Cri) 361: 2019

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SCC OnLine SC 588 that a statement made by co-accused during the investigation is hit by Section 162 of Cr.P.C. (corresponding to Section 181 of BNSS) and cannot be used as a piece of evidence. Further, the confession made by the co-accused is inadmissible because of Section 25 of the Indian Evidence Act (corresponding to Section 23 of BSA). It was observed at page 568:-

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44. Such a person, viz., the person who is named in the FIR, and therefore, the accused in the eye of the law, can indeed be questioned, and the statement is taken by the police officer. A confession that is made to a police officer would be inadmissible, having regard to Section 25 of the Evidence Act. A confession, which is vitiated under Section 24 of the Evidence Act, would also be inadmissible. A confession, unless it fulfils the test laid down in Pakala Narayana Swami [Pakala Narayana Swami v. King Emperor, 1939 SCC OnLine PC 1 : (1938-39) 66 IA 66: AIR 1939 PC 47] and as accepted by this Court, may still be used as an admission under Section 21 of the Evidence Act. This, however, is subject to the bar of admissibility of a statement under Section 161 CrPC. Therefore, even if a statement contains an admission, the statement being one under Section 161, it would immediately attract the bar under Section 162 CrPC.”

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Therefore, no reliance can be placed upon the statement made by the co-accused.

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It was rightly submitted on behalf of the State that the burden is upon the petitioner to prove that the possession

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was not conscious in view of Sections 35 and 54 of the NDPS Act.

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In the present case, the petitioner will have to establish during the trial that he was not aware of the possession. However, he cannot be held to be innocent, at this stage, based on the statement made by the co-accused.

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The status report shows that nine FIRs are pending against the petitioner; however, he failed to mention this fact in the bail petition. It was laid down by this Court in Prem Singh vs. State of H.P. 2020 (1) Shim. L.C. 476 that the petitioner must mention all the pending FIRs and all the criminal trials where the sentence provided is 7 years or more. It was observed:

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“15. Given the above, it is obligatory that in every bail petition, the petitioner must mention all pending FIRs and pending criminal trials, where the sentence provided is seven years or more. Furthermore, the petitioner must specify details of all cases where he was convicted and sentenced to imprisonment for one year or more.

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In addition to the above, in every bail petition filed in any Court within the jurisdiction of the State of Himachal Pradesh, the State/Respondent(s) shall explicitly mention in the status report about the criminal history. In bail petitions where there is no pleading about the criminal history, then the State/Respondent(s) shall bring it to the notice of the concerned Court about the non-mentioning of the criminal history. In such a situation, it shall be for the concerned Court to take a call, if it so desires, depending upon the facts of each case.”

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In the present case, the offence punishable under

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Section 20 of the NDPS Act is punishable with imprisonment of

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20 years, and the offence punishable under Section 457 of the IPC is punishable with imprisonment up to 14 years. Therefore, it was necessary to mention the registration of these FIRs in the bail petition as per the direction of this Court.

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It was laid down by the High Court of Punjab & Haryana at Chandigarh in Deen Mohd. Vs State of Haryana, CRMM-26229 (O&M) decided on 10.06.2022 that when the petitioner conceals the material fact from the Court, he cannot be held entitled to any consideration at the hands of the Court. It was observed:-

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“… The law is well settled that where a process is ‘ex debito Justitiae’, the Court would refuse to exercise its discretion in favour of the applicant where the application is found to be wanting in bona fides. Apex Court in the case of Hari Narain vs. Badri Dass, AIR 1963 S.C.1558 approved of the said principle and the same was followed in the case of Welcome Hotel vs State of Andhra Pradesh, (1983) 4 SCC 575 , where it was held that a party which has misled the Court is not entitled to any consideration at the hands of the Court.”

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Thus, the petitioner is not entitled to bail because of his conduct.

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It was submitted that the quantity of heroin stated to

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have been recovered from the house of the petitioner is intermediate, and he is entitled to bail as a matter of right. This

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submission is not acceptable. It was laid down by this Court in Khushi Ram Gupta v. State of H.P., 2022 SCC OnLine HP 3779, that the menace of drug addiction has seriously eroded into the fabric of society, and the release of an accused on bail in NDPS Act cases will send a negative signal to society. It was observed:

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“8. The menace of drug addiction, especially in adolescents and students, has seriously eroded into the fabric of society, putting the future generation as well as the prospects of future nation-building into serious peril.

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9. It is not a case where the investigating agency is clueless in respect of evidence against the petitioner. Though allegations against the petitioner are yet to be proved in accordance with the law, it cannot be taken singly as a factor to grant bail to the petitioner. Nothing has been placed on record on behalf of the petitioner to divulge as to how and in what manner he came in contact with the persons who were residents of the State of Himachal Pradesh. Thus, there is sufficient prima facie material to infer the implication of the petitioner in the crime. In such circumstances, the release of the petitioner on bail will send a negative signal in society, which will definitely be detrimental to its interests.

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10. The prima facie involvement of the petitioner in the dangerous trade of contraband cannot be ignored merely on account of the fact that he has no past criminal history. It cannot be guaranteed that there will be re-indulgence by the petitioner in similar activities, in case he is released on bail.”

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Similarly, it was held in Bunty Yadav v. State of H.P.,

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2022 SCC OnLine HP 4996, that even where the rigours of Section

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37 of the NDPS Act are not applicable, the bail cannot be claimed

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as a matter of right. Each case has to be adjudged on its own facts. It was observed:

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“6. The quantity involved in the case is 89.89 grams of heroin and 3.90 grams of MDMA. Such quantity may not technically fall under the category of commercial quantity; nevertheless, such quantity cannot be termed to be less by any stretch of the imagination. The evident nature of commercial transactions and dealing with the contraband aggravates the situation for the petitioner. In a case where Section 37 of the NDPS Act is not applicable, the bail cannot be claimed as a matter of right. The fate depends on the facts of each and every case.

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7. The menace of drug addiction, especially in adolescents and students, has seriously eroded into the fabric of society, putting the future generation as well as the prospects of future nation-building into serious peril.”

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Therefore, the petitioner cannot claim to be released

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on bail simply because the quantity of heroin recovered from his possession was less than a commercial quantity.

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The status report shows that multiple FIRs have been registered against the petitioner. Thus, the petitioner has criminal antecedents. This Court exhaustively dealt with the relevance of criminal antecedents in Aminodin vs State of H.P. 2024: HHC: 6091 and held, after referring to various judgments, that a Judge must consider the criminal antecedents of the accused, the nature of offences and his general conduct while considering the bail petition. Bail should not be generally

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granted to an accused with criminal antecedents when there is a likelihood of the commission of the crime.

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It was held in Harpreet Singh Talwar v. State of Gujarat, 2025 SCC OnLine SC 1103, that the criminal antecedents are relevant to determine the propensity to commit the crime. It was observed:

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31. Moreover, the Appellant's criminal antecedents, though not involving prior accusations under the NDPS Act, include multiple DRI and customs proceedings involving smuggling of cigarettes, undervaluation of imports, and alleged complicity in corruption offences. These antecedents are relevant only for the limited purpose of evaluating the Appellant's propensity to interfere with the process of justice if enlarged on bail.

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It was held in V. Senthil Balaji v. Enforcement Directorate, 2024 SCC OnLine SC 2626, that where the petitioner can become a threat to society because of his criminal antecedents, he should not be released on bail. It was observed:

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“27…..An exception will also be in a case where, considering the antecedents of the accused, there is every possibility of the accused becoming a real threat to society if enlarged on bail. The jurisdiction to issue prerogative writs is always discretionary.”

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Similarly, it was held in Union of India v. Barakathullah, 2024 SCC OnLine SC 1019, that where the persons

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were involved in the commission of similar offences, they should not be released on bail. It was observed: -

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“20. … So far as the respondents in the instant appeals are concerned, they are in custody for hardly one and a half years, apart from the fact that all the respondents are shown to have been involved in previous cases. There are about 8 to 9 previous cases shown in the charge sheet against the respondents, except accused Nos. 1, 4 and 6, who are shown to have been involved in two cases. Considering the nature and gravity of the alleged offences and considering their criminal antecedents, in our opinion, the High Court should not have taken a lenient view, more particularly when there was sufficient material to show their prima facie involvement in the alleged offences under the UAPA.”

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Therefore, the criminal antecedents of the petitioner

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would disentitle him from the concession of bail, especially when the F.I.Rs. registered against the petitioner relates to the commission of a similar offence, which shows that the possibility of the petitioner committing a similar offence cannot be ruled out.

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It was submitted that the co-accused has been released on bail and the petitioner is entitled to bail on the principle of parity. This submission cannot be accepted. There is nothing on record to show that the criminal antecedents of the

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co-accused are similar to those of the petitioner. Therefore, he cannot claim parity with the co-accused.

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No other point was urged.

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In view of the above, the present petition fails and the same is dismissed.

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The observations made hereinbefore shall remain confined to the disposal of the present petition and will have no bearing, whatsoever, on the merits of the case.

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The present petition stands disposed of, and so are the pending miscellaneous applications, if any.

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( Rakesh Kainthla)

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Judge

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17^th September, 2025

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(Anurag)

Shashi Kumar v. State of Hp

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Shashi Kumar v. State of Hp

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